Cablegate: Parliament Amends Constitution, Ousts Electoral

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O 191302Z DEC 08
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8028
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6268
RUEHDJ/AMEMBASSY DJIBOUTI 5504
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RUZEFAA/CDR USAFRICOM STUTTGART GE
RUZEFAA/HQ USAFRICOM STUTTGART GE

UNCLAS SECTION 01 OF 02 NAIROBI 002851

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: N/A
TAGS: PREL PGOV KDEM PHUM KE
SUBJECT: PARLIAMENT AMENDS CONSTITUTION, OUSTS ELECTORAL
COMMISSION

REF: A. NAIROBI 2747
B. NAIROBI 2221
C. NAIROBI 1698

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SUMMARY
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1. Parliament on December 16 passed the Kenya Constitution
Amendment Bill of 2008 (the Amendment). The Amendment
follows the recommendations of the Kriegler Commission
(Reftel B) and abolishes the Electoral Commission of Kenya
(ECK), which was widely discredited for its mishandling of
Kenya's 2007 general elections. It also removes the ECK's 22
commissioners from office. The Amendment creates an Interim
Electoral Commission (IEC) to prepare the groundwork for, and
administer, a referendum on a new constitution. Passage of
the Amendment was delayed by nearly one week as Parliament
demanded that it play a lead role in nominating IEC
commissioners and that nearly 600 ECK staff be absorbed into
the civil service. We expect President Mwai Kibaki to sign
the Amendment into Law. Passage of the Amendment completes
the legislative framework that is a prerequisite for writing
a new constitution. Parliament earlier this term passed a
Bill outlining the roadmap to a new constitution (Reftel C),
one of key tasks facing the Grand Coalition government, which
President Kibaki has signed into law. The Ambassador met
with the Minister of Justice, National Cohesion, and
Constitutional Affairs on December 19 to indicate that we are
willing to consider providing electoral support. The Minister
was receptive in principle, and we are following up with her
team. End Summary.

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THE AMENDMENT
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2. Parliament passed the Kenya Constitution Amendment Bill
of 2008 (the Amendment) on December 16. The Amendment
abolishes the Electoral Commission of Kenya (ECK), which was
widely discredited for its mishandling of Kenya's 2007
general elections, and removes the ECK's 22 commissioners
from office. It provides that the nearly 600 regular ECK
staff will be absorbed into the civil service. The ECK will
be replaced by an Interim Electoral Commission (IEC). The
IEC will be a leaner body of between five and nine
commissioners. It is tasked with administering the national
referendum on a new constitution, a key pillar of the
National Accord and Reconciliation Act of 2008. The IEC is
also tasked with updating and correcting the voters'
register, which the Kriegler Commission criticized for being
inaccurate and contributing to voter fraud (Reftel B). IEC
commissioners will be appointed after a public application
process overseen by a Parliamentary Select Committee (PSC).
The IEC will operate for no more than 15 months or until it
organizes the referendum on a new constitution, whichever
comes first.

3. The Amendment also establishes an Independent Boundaries
Review Commission to redraw constituency boundaries to reduce
disparities in the number of registered voters per
parliamentary constituency (Note: Kenya's smallest
parliamentary constituency in terms of the number of
registered voters has approximately 10,000 voters. The
largest has approximately 150,000 voters. End Note.) The
members of the Boundaries Commission will also be chosen
after a public application process overseen by the PSC. The
Amendment also creates an Independent Constitutional Dispute
Court to handle any legal disputes arising from the
constitutional referendum. The President will make
appointments to the IEC and Boundaries Review Commission in
consultation with the Prime Minister. The President will
appoint members of the Dispute Resolution Court in
consultation with the Prime Minister and the Chief Justice.

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PARLIAMENT DEMANDS A ROLE
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4. Passage of the Amendment was delayed by Parliament's
demands that it lead the nomination process for commissioners
of the IEC and the Interim Boundaries Review Commission. The
Amendment initially envisioned that the so-called Serena team
(eight Cabinet Ministers who negotiated the National Accord

NAIROBI 00002851 002 OF 002

and Reconciliation agreement that ended Kenya's post-election
crisis) would nominate IEC commissioners. A bloc of Members
of Parliament (MPs) were also adamant that the nearly 600 ECK
staff should not be fired along with the ECK Commissioners.
A bloc of MPs stated that they would vote the Amendment down
if these demands were not met. (Note: Rules of Parliament
forbid legislation that is defeated in a floor vote from
being reintroduced for six months. If the Amendment had been
defeated, constitutional reform would have been seriously
delayed. End Note.) President Kibaki and Prime Minister
Raila Odinga held three informal meetings with MPs to find a
compromise solution. Ultimately, the government agreed that
the PSC would oversee the nomination of commissioners and
that regular ECK staff would be absorbed into the civil
service, allowing Parliament to adopt the Amendment before it
recessed for the holidays.

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ECK TO CHALLENGE SACKING
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5. Local media have reported that the ECK commissioners
intend to file a lawsuit challenging their dismissal. They
will argue that Parliament had no right to fire the
commissioners through a constitutional amendment, but that it
should have convened individual tribunals for each of the 22
commissioners to determine whether they had committed
offenses that could justify the dismissal of individual
commissioners. This challenge is unlikely to succeed, as
Parliament appears to have properly exercised its legislative
powers to amend the constitution. (Comment: ECK
Commissioners, if they had not been fired, would have earned
between USD 4,000-6,000 per month, plus allowances over the
next 4 years. Thus, ECK commissioners are likely filing this
lawsuit to give them leverage to seek a financial settlement
from the government rather than in expectation of
successfully defending their jobs. End Comment.)

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COMMENT
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6. The ECK's dismal performance in the 2007 elections
required that it be disbanded. President Kibaki's firm
support for electoral reform gives us confidence that he will
sign the Amendment into law. We welcome the move to replace
the ECK with a body whose commissioners will be selected
through a transparent application process, which is an
improvement over the "gentlemen's agreement" which previously
governed the appointment of ECK commissioners. (Note:
Traditionally the President was required only to "consult"
with the opposition in selecting commissioners. However,
President Kibaki appointed commissioners preceding the 2007
general elections without consultation. End Note.) End
Comment.
RANNEBERGER

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